Warrants & Your Rights

In order for the defendant to assert standing, the defendant must have a personal expectation of privacy in the place searched, and whether that expectation is reasonable based on concepts of real or personal property or on "understandings that are recognized and permitted by society." Minnesota v. Carter, 525 U.S. 83 (1998).

Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) Overnight visitors have a reasonable expectation of privacy in their temporary shelter because "[s]taying overnight in another's house is a long-standing social custom that serves functions recognized as valuable by society... We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings."

An important limitation on the scope of the exclusionary rule is the good faith exception carved out in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). In Leon and Sheppard, the court held that evidence derived from the execution of an invalid search warrant was admissible as long as the officers were acting in good faith. The good faith exception to the exclusionary rule has also been applied indirectly to reasonable errors in the description of the place searched (Maryland v. Garrison, 480 U.S. 79 (1987)) and directly to warrantless searches based on a statute subsequently held to be unconstitutional (Illinois v. Krull, 480 U.S. 340 (1987)). The court also has found the arrest of a suspect based on a quashed warrant that remained outstanding due to a clerical error to be within the good faith exception to the exclusionary rule. Arizona v. Evans, 514 U.S. 1 (1995). In Herring v. United States, the Court went even further to find the exclusionary rule did not apply when an officer reasonably believed that there was an outstanding arrest warrant but the belief turned out to be wrong because of the negligent bookkeeping error by another police officer. Herring v. United States, 129 S Court. 695, (2009). However if the police department is reckless in the maintaining of their warrant system or intentionally makes false entries, the good faith exception does not apply.

Franks v. Delaware, 438 U.S. 154 (1978) - In Franks, the court held that warrant affidavits containing reckless or intentional false statements by the affiant are subject to challenge by a motion to controvert. If the affidavit, cleansed of the challenged statements, does not establish probable cause, the defendant is entitled to suppression of the derivative evidence. Franks, 438 U.S. at 171-72. Material omissions as well as false statements are subject to challenge. The due process principles of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny concerning the production of exculpatory or potentially exculpatory evidence are applicable to suppression hearings involving a challenge to the truthfulness of allegations in the affidavit for a search warrant.

A warrant must describe with reasonable certainty the place to be searched and the things to be seized. Groh v. Ramirez, 540 U.S. 551 (2004).

The Supreme Court has recognized knock and announce as a component of the fourth amendment. Wilson v. Arkansas, 514 U.S. 927 (1995); see also Richards v. Wisconsin, 520 U.S. 385 (1997). The Supreme Court allows no-knock entry upon "reasonable suspicion" of officer danger, with some unspecified level of balancing for unnecessary destruction of property in making the entry. United States v. Ramirez, 523 U.S. 65 (1998).

The fourth amendment prohibits warrantless entry into a home for the purposes of making an arrest. Kirk v. Louisiana, 536 U.S. 635, 637-39 (2002); Payton v. New York, 445 U.S. 573, 586-87 (1980). To justify a warrantless entry into a residence, the government must show the existence of probable cause and exigent circumstances. Kirk, 536 U.S. at 638. The existence of an arrest warrant allows entry into a dwelling in which the defendant lives, but entry into the home of a third party must be supported by a search warrant or exigent circumstances. Steagald v. United States, 451 U.S. 204, 211-22 (1981). A non-exigent entry to affect an arrest of an overnight guest of a third party requires at least an arrest warrant to comply with the fourth amendment. Minnesota v. Olson, 495 U.S. 91 (1990).

It is a first principle of fourth amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so. The court has recognized, however, that "the exigencies of the situation" may sometimes make exemption from the warrant requirement "imperative." Katz v. United States, 389 U.S. 347, 357, 88 SCt. 507, 19 L.Ed.2d 576 (1967) ("searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.")

Before an officer may obtain a search warrant he must convince a magistrate that he possesses sufficient information to believe that the place he is requesting to search will yield contraband, evidence or a person. The officer may rely on information he obtained from others. The information the officer receives does not need to be reliable: as long the totality of the information is deemed reliable, was the officer able to corroborate any of the information based upon observation or investigation (Illinois v. Gates, 462 U.S. 213 (1983). Police are able to act on an anonymous tip that named the defendants as a drug dealers and specified facts about how dealing take place. Police independently observed a transaction as it was described. Furthermore, the Warrant must describe the location to searched and the items to be seized.

The traditional rule is that warrantless searches and seizures are per se unreasonable and that the burden is on the government to establish that a search or seizure falls within a well-established exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Stoner v. California, 376 U.S. 483, 486 (1964).

Exceptions:

Consent - Voluntary consent of an authorizing party - particularly concerning for juvenile cases since the parent is usually the home owner granting the police permission to search the youth's room. The officer is not required to tell the parent that they may deny the request to search. United States v. Drayton, 536 U.S. 194, 206-07 (2002); Schneckloth v. Bustamonte, 412 U.S. 218, 226-28 (1973). Consent to search may be given by a third party who has common authority over the place to be searched. United States v. Matlock, 415 U.S. 164, 170-71 (1974).

Plain view - In Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971), the plain view doctrine allows a warrantless seizure where the officers inadvertently observed an item in a place where they have a right to be, and probable cause to believe the item is subject to seizure is readily apparent. In Texas v. Brown, the court upheld the seizing of balloons containing heroin when the officer observed them when the driver opened his glove box to retrieve his ID. However, the officer may not move an item to get a better view of the serial number. Arizona v. Hicks, 480 U.S. 321 (1987). In Horton v. California, 496 U.S. 128 (1990), the court relaxed the requirement that the item be found in plain view inadvertently. In Horton, the court approved the seizure of weapons not named in the search warrant for rings that were the proceeds of an armed robbery; the incriminating nature of the guns was readily apparent to the searching officer, and the officer was lawfully present on the premises deliberately to search for evidence.

Custodial Arrest - An individual may be searched as a result of any custodial arrest. The type of charge is irrelevant as long as the person was taken into custody. The officers may conduct a full search of the person and the area within his or hers immediate reach. In Chimel, Chimel v. California, 395 U.S. 752 (1969), The Supreme Court held that a search incident to arrest may only include "the arrestee's person and the area ‘within his immediate control’-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Id.

Exigent Circumstances - Exigent circumstances are an exception to the requirement for a warrant to search. The police may enter a residence if they are in immediate pursuit of the individual, they believe someone is in danger or to search residence for survivors. Hot Pursuit - Payton v. New York, 445 U.S. 573 (1980) Imminent fire safety needs in the aftermath of a blaze - Michigan v. Clifford, 464 U.S. 287 (1984) Emergency - Arizona v. Hicks, 480 U.S. 321, 324-25 (1989) An officer may hold an occupant outside of his residence while obtaining a search warrant if the officer has probable cause to believe the home contains evidence of a criminal offense and the person may enter the property and destroy evidence. Illinois v. McArthur, 531 U.S. 326, 331-36 (2001). Texas - To justify a warrantless search, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances, which made the procuring of a warrant impracticable. McNairy v. State, 835 SW.2d 101, 106 (Tex. Crim. App.1991); Hooper v. State, 516 SW.2d 941, 943 (Tex. Crim. App.1974).

Vehicle searches - Police may search a vehicle incident to a recent occupant’s arrest only 1 the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search 2 it is reasonable to believe that evidence regarding the arrest might be found in the vehicle. Arizona v. Gant, 556 U.S. 1078 (2009). If the police have probable cause to search the vehicle then they have the ability to search the containers and bags within the vehicle. California v Acevedo, 500 U.S. 565, 579-80 (1991); United States v Ross, 456 U.S. 798, 824 (1982). This includes containers belonging to the passengers that are large enough to conceal the subject of the search. Wyoming v. Houghten, 526 U.S. 295 (1999).

Inventory Search - Police are free to search a person or his vehicle to inventory its contents if the individual is arrested. The police action is not to search for evidence of criminal activity but to make a list of the accused belongings to prevent the police from being falsely accused of theft and criminal damage by the owner.

Border Searches - A search may be conducted of all persons and property entering the country without individualized suspicion. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

School Searches - The standard is relaxed with respect do school searches, probable cause is not required. Instead, the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325 (1985), stated, the “legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception;" second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place. Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.

Texas case - Russell v. State, 74 SW.3d 887 (Tex. App. 2002).

The school search involved the pat down by an officer at the request of the principal of a student wearing baggie shorts who kept playing with the pocket of his shorts. The student was in the office as a result of being caught smoking on campus. The juvenile made no threats and no witness mentioned a weapon. The principal feared the pocket contained a weapon so she ordered the juvenile to empty his pockets, he refused. The principal called the school officer in to conduct a search. The officer patted the juvenile down and found marijuana in his pocket.

The Texas court had to address the one issue that T.L.O. specifically did not, which is the standard when an officer is involved. The court looked to other states for guidance, “other courts have established a three-part inquiry to follow when a law enforcement official is involved in a school search. According to our research, the Supreme Court of Illinois was the first to do so. In People v. Dilworth, that court surveyed the decisions pertinent to this issue and drew the following conclusions:

Decisions filed after T.L.O. that involve police officers in school settings can generally be grouped into three categories: (1) those where school officials initiate a search or where police Involvement is minimal, (2) those involving school police or liaison officers acting on their own authority, 3 those where outside police officers initiate a search. Where school officials initiate the search or police involvement is minimal, most courts have held that the reasonable suspicion test obtains. The same is true in cases involving school police or liaison officers acting on their own authority. However, where outside police officers initiate a search, or where school officials act at the behest of law enforcement agencies, the probable cause standard has been applied.”

The Supreme Court put limits on the schools ability to search students. In Safford Unified School District v. Redding, 557 U.S. 1252 (2009) the court required the search to be reasonably related in scope to the circumstances which justified the interference in the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Having a 13 year old girl strip down to her underwear and pull her bra and panties away from her body and shake them was going too far. “We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate part.”

In, Board of Education of Independent School District no. 92 of Pottawatomie CountyEarls 122 S Court. 2559 (2002), the Supreme Court found that drug testing all youth involved in school activities was permissible because participation was a privilege. The student could avoid testing by foregoing the activity.

Rule of Exclusion
The basic rule of Wong Sun v. United States, 371 U.S. 471 (1963), is that evidence seized as a result of a fourth amendment violation and evidence derived there from is inadmissible at an adjudication. Except:

Independent Source Rule - In Murray v. United States, 487 U.S. 533 (1988), the court elaborated on the independent source rule, which allows evidence to be used that was the product of an unlawful intrusion as long as a separate and distinct evidentiary trail led to the same place. In Murray, agents unlawfully entered a warehouse and saw bales of marijuana. Without seizing anything, the officers drafted a warrant affidavit referring only to information in their possession prior to the entry; all reference to the illegal search was omitted. The court approved the procedure for establishing an independent basis for the seizure of the marijuana.

Inevitable Discovery - In Nix v. Williams, 467 U.S. 431 (1984), the court approved the hypothetical inevitable discovery doctrine, allowing the evidence where the government established that the illegally obtained evidence would have been discovered through legitimate means independent of official misconduct.